HomeMy WebLinkAboutItem 03 - Pipeline License Agreement ���,, + � �_,a,����— -
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MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
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FROM: BRUNO RUMBELOW, CITY MANAGER �%��"
MEETING DATE: MARCH 4, 2008
SUBJECT: CONSIDER APPROVAL OF A PIPELINE LICENSE
AGREEMENT WITH TEXAS MID-STREAM GAS SERVICES,
LLC.
RECOMMENDATION:
Staff recommends the City Council approve a Pipeline License Agreement with Texas
Mid-Stream Gas Services to bore a steel natural gas pipeline through a small portion of
Highpoint Park in northeast Grapevine. Attached are the agreement and Exhibit "A"
which is an aerial photo of Highpoint Park that shows the proposed location of the
pipeline.
BACKGROUND:
Officials at Mid-Stream Gas Services, LLC contacted staff several weeks ago to
establish an agreement with the City to bore a single natural gas pipeline, not to exceed
24" in diameter, under Highpoint Park in northeast Grapevine. The pipeline will be a
;� minimum of eight foot in depth and will go through approximately 689' of parkland. The
initial term of the agreement is for 30 years for a payment of $51,675, payable when the
agreement is signed by both parties. Mid-Stream Gas Services, LLC can request
extension of the term of the agreement for two additional 10 year terms at a minimum
payment to the City of $25,000 per term.
In addition to the $51,675, Mid-Stream Gas Services, LLC has agreed to donate
$23,325 to the construction of a restroom facility at Bear Creek Park in south Grapevine.
The estimated cost to construct a restroom facility at Bear Creek Park is $75,000 which
is the total amount that Mid-Stream will pay the City initially if the Council approves the
agreement.
Bear Creek Park is one of the parks that will host youth baseball/softball league games
and practices during the construction of the new ballfields at Oak Grove Park. Bear
Creek Park currently has port-a-potties. A new restroom facility at the park would be a
great enhancement to the park. Staff recommends the new restroom facility be located
between the two ballfields at the park. The new restroom facility will also be adjacent to
the hike and bike trail that goes through the park. Please see Exhibit "B" which is an
aerial photo of Bear Creek Park showing the proposed location of the new restroom
facility.
City Attorney Matthew Boyle and Risk Manager Dan Hambrick have reviewed the
� agreement.
February 27,2008(4:25PM)
THE STATE OF TEXAS §
Pipeline License Agreement
COUNTY OF TARRI�NT §
This Pipeline License Agreement ( "Agreement or License" ) is
entered into on this the day of , 2008 by
and between TEXAS MID-STREAM GAS SERVICES, L.L.C. , an Oklahoma
limited liability company ( "LICENSEE" ) , and the CITY OF
GRAPEVINE, TEXAS, a municipal corporation located in Tarrant
County, Texas ( "CITY" ) , acting by and through its City Manager
or designee .
WITNESSETH:
1 . NON-EXCLUSIVE LICENSE
CITY grants to LICENSEE a revocable License subject to the
CITY' s prompt receipt of the compensation stated in this
Agreement and approval by the Grapevine City Council .
The License includes the non-exclusive right and privilege
to construct, repair, reconstruct, operate and maintain
under specified Right-of-way ("Right-of-way" or "Rights-of-
way" } , a single steel natural gas pipeline not to exceed
twenty-four (24" ) inch nominal diameter (the "Pipeline" ) .
The exact location of the Pipeline is identified on the
attached Exhibit "A" , incorporated herein for all intents
and purposes .
2 . TERM
This License is granted for a term of thirty (30) years,
unless sooner terminated according to other terms and
provisions of this Agreement or in accordance with law.
LICENSEE may request extension of the thirty (30) year term
for two additional ten (10) year terms by giving CITY
notice of LICENSEE' s intention to extend for a ten (10)
year period at least six (6) months prior to the then
scheduled expiration of this License . LICENSEE shall obtain
the consent of the Grapevine City Council prior to any
renewal period, with the addition of conditions as the
Grapevine City Council may prescribe .
3 . REASONABLE ANNUAL CHARGE
(a) Upon the signing of this Agreement, LICENSEE will pay
to CITY the sum of Fifty One Thousand, Six Hundred and
Seventy Five and 00/100 Dollars ($51, 675 . 00) for the
initial thirty (30) year term of this Agreement . The
initial thirty (30) year term, along with any future
City of Grapevine License Agreement 1
TX-TARR-DFAP 12.01
.
renewals shall be paid in advance . LICENSEE contracts
and agrees that this consideration shall be termed
"Reasonable Annual Charge" provided, nevertheless,
that the Reasonable Annual Charge shall be collected
upon execution of this Agreement for the___.___entire
- initial term. No interest or refund of the Reasonable
Annual Charge shall be due from the CITY due to early
termination by LICENSEE or failure of LICENSEE to
execute this License after GRAPEVINE City Council
approval . The CITY and LICENSEE contract and
stipulate that the compensation in this Agreement for
the initial thirty year (30) term shall be a
Reasonable Annual Charge as the term Reasonable Annual
Charge is used in the Texas Utilities and Natural
Resources Codes, as they may be amended from time to
time . LICENSEE also agrees that the Reasonable Annual
Charge does not exceed the cost to the CITY for
damage, administration, supervision, inspection and
other work regulating the location of the pipeline,
provided, however, that if the amount in this
Agreement is deemed by the Grapevine City Council to
be less than the amount required to cover the cost of
damage to public property, administrating,
supervising, inspecting and otherwise regulating the
Pipeline, then in that event, at time of any renewal
this Reasonable Annual Charge may be increased as
reasonably provided by Grapevine City Council ��*�.
resolution.
The Reasonable Annual Charge for a ten (10) year renewal
period will be Twenty Five Thousand 00/100 dollars
($25 , 000 . 00) , adjusted by multiplying said amount by a
fraction, the numerator of which is the Annual Consumer
Price Index (All Urban Consumers Series ID CWROOOOSAO)
published by the United States Department of Commerce
Bureau of Labor Statistics (the "CPI" ) for the last year
published prior to the date of such notice of intention to
extend, and the denominator of which is the Annual CPI as
of December 31, for 2008 . Each such one time renewal fee
must be paid in full at the same time as the renewal notice
is given and must be approved by the Grapevine City Council
in order for the notice to be effective .
4 . CONDITIONS
LICENSEE is subject to the following terms and conditions :
(a) LICENSEE shall not remove, cut or otherwise disturb
the public roadway improvements and utilities during
construction and installation of the Pipeline within
the specified Right-of-way, or any reconstruction
thereof, to the satisfaction and acceptance of the
City. This License is subject to all applicable State
and Federal laws, the provisions of the Charter of the
TX-TARR-DFAP-012.01 (2)
CITY as it now exists or as may hereafter be adopted
or amended and the Ordinances of the CITY now in
effect or those which may hereafter be passed or
adopted. All facilities of LICENSEE which are
installed within the Right-of-way shall be
constructed, operated and maintained in accordance
with applicable Federal law and regulations of the
U. S . Department of Transportation Pipeline and
Hazardous Materials Safety Administration ("PHMSA
Regulations" ) or, to the extent that Federal law and
PHMSA Regulations do not apply, in accordance with the
City Codes and ordinances . LICENSEE shall submit to
the CITY Director of Parks & Recration three (3) sets
of detailed construction plans, specifications,
drawings and maps showing the location and proposed
routing of all pipelines and all facilities to be
installed on, across, or under the Public Right of Way
not less than thirty (30) days prior to the
commencement of construction. The construction
drawings will include, without limitation: (i) the
minimum depth of the Pipeline, which shall be six (6)
feet, and additional depth may be necessary due to
other constraints or utilities; (ii) all work shall be
bored and no surface use is granted with this
Agreement; (iii) detailed drawings will be provided of
all bores, (iv) the length and depth of all directional
bores will be clearly indicated on the plans; (v) the
full limits of the proposed work within the public
right of way will be identified; and (vi) detailed
pipe material and construction specifications will be
provided. The minimum plan size shall be 11 inch
(11" ) X 17 inch (17" ) and the minimum scale will be 1
inch (1" ) = 1 foot (1' ) . The City Director of Public
Works and the Director of Parks & Recreation or their
designees shall review the plans and may require
reasonable modifications in order to protect existing
or anticipated public improvements or utilities and to
minimize interruption. LICENSEE shall then cause the
appropriate public records to be modified so as to
provide record notice to others of any improvements
within the Right-of-way.
LICENSEE may not begin construction until the location
and proposed routing of the new construction or
reconstruction and all required plans and drawings
have been approved in writing by the CITY.
(b) The location and route of the Pipeline within the
Right-of-way shall be subject to the lawful ,
reasonable and proper control and direction of the
CITY.
(c) In the event the construction or maintenance of the
Pipeline requires the temporary closing of a traffic
TX-TARR-DFAP-012.01 (3)
lane or lanes, LICENSEE shall notify the Public Works
Department of the CITY not less than ten (10) days
prior to the construction or maintenance and provide
two (2) sets of traffic control plans ten (10) days
prior to construction. The Public Works Department
may require the submittal of a traffic control plan
and may also require that all lanes be open and
available to traffic during peak traffic hours . This
Section shall not apply to emergency repairs .
(d) LICENSEE shall conduct all traffic control in
accordance with the latest version of the Texas Manual
on Uniform Traffic Control Devices as it may be
amended from time to time.
(e) LICENSEE shall provide 7 days advance notice to the
Director of Public Works prior to commencing any
routine construction, reconstruction or maintenance
within the City rights of way.
(f) Upon reasonable notice, as determined by the
circumstances, at the request of the CITY and at
LICENSEE ' s cost, LICENSEE shall remove and abate any
portion of the Pipeline or any facility within the
public right of way that is dangerous to life or
property or as required for public construction
projects, as determined by the CITY. If LICENSEE or '
LICENSEE' s surety, after reasonable written notice,
fails or refuses to act , the CITY may remove or abate
the same, at the sole cost and expense of LICENSEE or
LICENSEE' s surety. LICENSEE shall promptly restore any
public and/or private improvements located within the
Rights-of-way to as good a condition as before
commencement of the work, to the reasonable
satisfaction of the City Director of Parks &
Recreation and the LICENSEE shall excavate only for
the construction, installation, expansion, repair,
removal and maintenance of all or a portion of its
Pipeline .
(g) LICENSEE is subject to the police powers of the CITY,
other governmental powers and the CITY ' s rights as a
custodian of public property under state and federal
laws . LICENSEE is subject to applicable Federal law
and regulations of the U. S . Department of
Transportation Pipeline and Hazardous Materials Safety
Administration ( "PHMSA Regulations" ) or, to the extent
that Federal law and PHMSA Regulations do not apply,
to the City Codes and ordinances in connection with
the construction, expansion, reconstruction,
maintenance or repair of the Pipeline that is in or
under the public Rights-of-way.
TX-TARR-DFAP-012.01 (4)
(h) LICENSEE shall furnish to the CITY accurate and
complete information relating to the construction,
reconstruction, removal , maintenance, operation and
repair of the Pipeline performed by LICENSEE within
the public Rights-of-way.
(i) Within 180 days of completion of LICENSEE ' s
Pipeline that is in or under the public rights-of-way,
LICENSEE shall supply the CITY with a complete set of
"as built" drawings for the Pipeline in a format
prescribed by the CITY. The current required format
shall be ArcGIS 9 . 2 . Autodesk 2004 or newer, or
shapefile or personal geodatabase format . Upon prior
approval by the Director of Parks & Recreation ,
LICENSEE may provide "as built" drawings in a
different electronic format .
(j ) The CITY shall require reasonable bonding requirements
of LICENSEE including having the CITY as bond obligee,
as are required of other entities that place
facilities in the public Rights-of-way whether public
or private . Bonding shall be a minimum of the full
cost of construction of the Pipeline and any
associated facilities, in, under or through the public
right of way. Performance, Payment, and Maintenance
Bonds shall be required to the full extent allowed by
law. Proof of current permitting will be provided to
the Director of Public Works covering the Pipeline
and associated facilities in accordance with federal
and state standards, including but not limited to,
Texas Railroad Commission directives and regulations .
This coverage will include, without limitation,
coverage in the event of abandonment or deterioration
of the Pipeline and associated facilities, in, under
or through the public right of way.
(k) If the CITY gives written notice, LICENSEE shall , at
LICENSEE' s expense, temporarily or permanently
relocate, change or alter any position of LICENSEE ' s
Pipeline that is in the public right-of-way within 120
days . For projects expected to last beyond 120 days,
the CITY will confer with LICENSEE before determining
the alterations to be required and the timing thereof .
The CITY shall give notice whenever the CITY has
determined that relocation, change or alteration is
reasonably necessary for the construction, operation,
repair, maintenance or installation of CITY or other
governmental public improvements in the Right-of-way.
If such relocation, change or alteration is reasonably
necessary for the construction, operation, repair,
maintenance or installation of CITY or other
governmental public improvements, in the property.
TX-TARR-DFAP-012.01 (5)
(1) During the terms of its License, LICENSEE may trim
trees in or over the Property as may be required for
safe and reliable operation, use and maintenance of
its Pipeline . All tree trimming shall be performed in
accordance with standards promulgated by the CITY.
Should LICENSEE, its contractor or agent, fail to
remove such trimmings within twenty-four (24) hours,
unless agreed to in writing by the parties for a
different period, the CITY may remove the trimmings or
have them removed, and upon receipt of a bill from the
City Chief Financial Officer or his designee, LICENSEE
shall promptly reimburse the CITY for all costs
incurred within five (5) working days by payment to
the Finance Department . Also, any trees larger than
3" caliper that are removed, damaged or killed as a
result of the installation of the pipeline or repairs
to the pipeline must be mitigated with the CITY.
(m) This License is subject to any existing utilities or
communication facilities, including drainage,
presently located within the License area, owned
and/or operated by the CITY or any utility or
communications company, public or private, and to any
rights presently owned by any utility or
communications company, public or private, for the use
of the License area for facilities presently located
within the boundaries of the License area . =�'"�
(n) The Pipeline will have location markers at all times
above and below ground in accordance with Federal law.
(o) LICENSEE will comply with appropriate federal and
state regulations, and provide proof to CITY upon
request .
(p) LICENSEE' s Pipeline will be located no closer than
three (3) feet to any water utility that is currently
located within the public Right of Way, subject of
this agreement .
(q) LICENSEE will construct the Pipeline and any
associated facilities so that the ability to place
driveways, sidewalks, irrigation systems and
equipment, landscaping improvements or other similar
structures will not be affected and LICENSEE hereby
consents to such structures .
5 . CANCELLATION
This License is granted subject to the following
conditions, terms and reservations : �.,�
TX-TARR-DFAP-012.01 (6)
(a) That at such time as this License is terminated or
canceled, as described herein, LICENSEE, upon orders
issued by the CITY, with reasonable notice, acting
through its City Manager, shall remove the Pipeline
and all other installations, improvements and
appurtenances, if any, owned by it situated in, under
or attached to the Rights-of-way and shall restore the
premises to their condition as it existed immediately
prior to removal, in accordance with the reasonable
requirements of the City Manager at the sole cost of
LICENSEE. In the event, upon termination of this
License, LICENSEE or LICENSEE' s surety shall fail to
remove the Pipeline and its installations,
improvements and appurtenances and to restore the
Rights-of-way in compliance with orders issued by the
CITY, or such work is not done to the reasonable
satisfaction of the City Manager, then in either event
the CITY shall have the right to do all work necessary
to restore said area to its condition as it existed
immediately prior to removal , normal wear and tear
excepted, or cause such work to be done and to assess
the cost of all such work against LICENSEE or
LICENSEE' s surety; in neither event shall the CITY be
liable to LICENSEE on account thereof .
(b) The License is nonexclusive and is made subordinate to
the right of the CITY to use the Rights-of-way for any
public purpose . The governing body of the CITY
reserves the right at any time with or without cause
to unconditionally revoke this License, by resolution
duly passed by said governing body, giving LICENSEE
not less than sixty (60) days notice provided,
however, such notice shall not be less than thirty
(30) days in the event of a payment not made as
required in this License . There will be no refund of
the pre-paid compensation. LICENSEE shall have the
right of cancellation upon giving the CITY sixty (6)
days written notice of its intention to cancel, and in
the event of termination or cancellation by the CITY
or LICENSEE, as the case may be, this License
Agreement shall become null and void and LICENSEE or
anyone claiming any rights under this instrument shall
remove any improvements and encroachments at
LICENSEE' s expense . Failure to do so shall subject
LICENSEE to the provisions contained in Subsection (a)
above . All work shall be done at the sole cost of
LICENSEE and to the reasonable satisfaction of the
City Manager of the CITY or his designee . In the event
this License Agreement is cancelled by LICENSEE, CITY
shall retain all compensation paid in accordance with
this Agreement .
(c) It is further understood that if and when the CITY, in
the exercise of its discretion, shall determine that
TX-TARR-DFAP-012.01 (7)
the grade of any street, alley, sidewalk or parkway
should be modified or changed, or that any other work
should be done in connection with any public
improvement which will affect the Property and/or any
of LICENSEE ' s installations and improvements thereon,
it will give Licensee a minimum of forty-five (45)
days' notice and Licensee shall make any modification
or relocation of LICENSEE' s Pipeline that Licensee
determines, in its sole judgment, to be reasonably
necessary because of CITY' s proposed activity. Any
modification or relocation shall be made at the sole
expense of LICENSEE and to the reasonable satisfaction
of CITY.
6 . INSURANCE
(a) LICENSEE and its agents and contractors that are in
the public rights-of-way, shall obtain and maintain in
full force and effect throughout the term of this
License and any extension or renewal thereof,
insurance with an insurance company licensed or
approved to do business in the State of Texas,
approved by the State of Texas, and acceptable to the
CITY. Al1 companies will be required to be rated A-
VII or better by A.M. Best or A or better by Standard
and Poor ' s or as otherwise approved by CITY' s Risk -�
Manager. LICENSEE shall provide CITY with proof of
such insurance so required at the time of the approval
of this Agreement by the Grapevine City Council . The
CITY reserves the right to review these insurance
requirements during the effective period of the
License and any extension or renewal thereof, and to
adjust insurance coverage and their limits when deemed
necessary and prudent by the City' s Risk Manager,
based upon changes in statutory law, court decisions
or the claims history of the industry or LICENSEE.
(b) Subject to LICENSEE ' s right to maintain reasonable
deductibles in such amounts as are approved by the
CITY, LICENSEE and its agents and contractors in the
public rights-of-way, shall obtain and maintain in
full force and effect for the duration of this License
and any extension or renewal thereof, at LICENSEE' s
sole expense, insurance policy coverage in the
following type and minimum amounts :
Worker ' s Compensation, per statutory requirements, and
Employer ' s Liability of $100 , 000 each
accident/occurrence, $100, 000 disease-each employee,
$500 , 000 disease-policy limit .
Commercial General Liability in a minimum of n
$10, 000 , 000 per occurrence . The policy shall have no
TX-TARR-DFAP-012.01 (8)
standard coverages removed by exclusions and shall
include the following:
(i) Premises/Operations for Bodily Injury and
Property Damage Liability
(ii) Independent Contractors Liability
(iii) Pollution Endorsement or Pollution Liability
Policy
(iv) Products/Completed Operations including coverage
for:
Personal Injury
Contractual liability
Explosion, collapse and underground property
damage
Immediate discharge or leak of hazardous
substances or pollutants .
Comprehensive Automobile Insurance in a minimum amount
of $1, 000, 000 combined single limit for bodily injury
and property damage . Coverage shall include loading
and unloading hazards, for:
(i) Owned/Leased Automobiles
(ii) Non-owned Automobiles
(iii) Hired Automobiles
(c) These requirements may be met through a combination of
underlying and excess policies .
(d) The CITY shall be entitled, upon request and without
expense, to review copies of the policies and all
endorsements .
(e) LICENSEE agrees that, with respect to the above
required insurance, all insurance contracts will
contain the following required provisions :
(i) Name the CITY and its officers, employees, board
members and elected representatives as
additional insureds (as the interests of each
insured may appear) as to all applicable
coverage;
TX-TARR-DFAP-012.01 (9)
(ii) Provide for thirty (30) days notice to the CITY
for cancellation, non-renewal or material
change;
(iii) Provide for notice to the CITY; and
(iv) Provide that all provisions of the License
Agreement, as amended, concerning liability,
duty and standard of care, including the
Indemnity Sections of this License Agreement,
shall be underwritten by contractual coverage
sufficient to include such obligations within
applicable policies .
(f) The insurance policies obtained by LICENSEE in
compliance with this Section shall be subject to
reasonable approval by the CITY. Proof of insurance
shall be filed and maintained with the City during the
term of this License Agreement or any extension or
renewal thereof and may be changed from time to time
to reflect changing liability limits, as required by
the CITY. LICENSEE shall immediately advise the City
and City Attorney of any actual or potential
litigation that may develop that would affect
LICENSEE ' s insurance .
(g) Insurers shall have no right of recovery (subrogation)
against the CITY, it being the intention that the
insurance policies shall protect LICENSEE and the CITY
and shall be primary coverage for all losses covered
by the policies .
(h) The policy clause "Other Insurance" shall not apply to
the CITY where the CITY is an insured on the policy.
(i) Companies issuing the insurance policies shall have no
recourse against the CITY for payment of any premium
or assessments which all are set at the sole risk of
LICENSEE.
(j ) LICENSEE shall carry all insurance at its expense and
shall furnish to the CITY a certificate of such
coverage . Al1 insurance shall bear an endorsement to
the effect that no cancellation will be effective
without first giving thirty (30) days written notice
to the City. In the event LICENSEE shall allow
insurance coverage to lapse, then this License shall
automatically be canceled and terminated.
(k) Should LICENSEE fail to provide a certificate
evidencing insurance coverage in accordance with the
specifications as required by this section within
thirty (30) days subsequent to mailing of a written
TX-TARR-DFAP-012.01 (10)
request therefore, the City Manager may terminate the
License granted herein.
(1) If written on a claims made basis, LICENSEE shall
maintain all claims made basis policies for a period
of four (4) years after the removal of the Pipeline or
shall purchase extended reporting period or "tail"
coverage for the same period of time
7 . INDEMNIFICATION
(a) LICENSEE CONTRACTS AND IS BOUND TO INDENII�TIFY, DEFEND
AND HOLD THE CITY AND ITS EMPLOYEES, CONTRACTORS AND
AGENTS WHOLE AND HARMLESS AGAINST ANY AND ALL CLAIMS
FOR DAMAGES, COSTS 1��ND EXPENSES TO PERSONS OR PROPERTY
THAT MAY ARISE OUT OF OR HE OCCASIONED BY THE
LICENSEE' S USE, OCCUPANCY 2+,ND MAINTENANCE OF
LICENSEE' S PIPELINE, INSTALLATIONS AND IMPROVEMENTS OR
HAZARDOUS SUBSTANCES OR FROM ANY ACT OR OMISSION OF
ANY REPRESENTATIVE, AGENT, CONTRACTOR AND/OR EMPLOYEES
OF LICENSEE, AND WHERE LAWFUL, BY REASON OR AS A
CONSEQUENCE OF HAVING GRANI'ED PERMISSION TO LICENSEE
TO USE AND MAINTAIN PUBLIC PROPERTY, UNLESS DAMAGE OR
OTHER LOSS OR INJURY IS CAUSED BY THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF THE CITY, ITS EMPLOYEES,
CONTRACTORS OR AGENTS. LICENSEE SHALL MAKE NO CLAIM
OF ANY KIND OR CHARACTER AGAINST THE CITY FOR DAMAGES
THAT IT MAY SUFFER BY REASON OF THE INSTALLATION,
CONSTRUCTION, RECONSTRUCTION, OPER.ATION AND/OR
MAINTENANCE OF ANY PUBLIC IMPROVEMENT OR UTILITY
INSTALLED WITHIN SAID RIGHTS-OF-WAY, INCLUDING BUT NOT
LIMITED TO, ANY WATER AND/OR SANITARY SEWER MAINS
AND/OR STORM SEWER FACILITIES AND WHETHER SUCH DAMAGE
IS DUE TO FLOODING, INFILTRATION, BACKFLOW AND/OR
SEEPAGE CAUSED FROM THE FAILURE OF ANY SUCH
INSTALLATION, NATURAL CAUSES OR ANY OTHER CAUSE,
EXCEPT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(b) LICENSEE FURTHER CONTRACTS TO INDEMNIFY, DEFEND, AND
HOLD CITY HARMLESS AGAINST ALL CLAIMS, DAMAGES, AND
LIABILITIES OF WHATEVER NATURE, FORESEEN OR UNFORSEEN,
UNDER ANY HAZARDOUS SUBSTANCE LAWS, INCLUDING BUT NOT
LIMITED TO THE FOLLOWING:
(i) ALL FEES INCURRED IN DEFENDING ANY ACTION OR
PROCEEDING BROUGHT BY A PUBLIC OR PRIVATE ENTITY
AND ARISING FROM THE PRESENCE, CONTAINMENT, USE,
MANi7FACTURE, HANDLING, CREATION, STORAGE,
TREATMENT, DISCHARGE, RELEASE, OR BURIAL ON THE
PIPELINE LICENSE PROPERTY OR THE TR.ANSPORTATION
TO OR FROM THE PIPELINE LICENSE PROPERTY OF ANY
HAZARDOUS SUBSTANCE. THE FEES FOR WHICH
•� LICENSEE SHALL BE RESPONSIBLE UNDER THIS
TX-TARR-DFAP-012.01 (11)
SUBPAR.AGR.APH SHALL INCLUDE, BUT SHALL NOT BE
LIMITED T0, THE REASONABLE FEES CHARGED BY
ATTORNEYS, ENVIRONMENTAL CONSULTAN'TS, ENGINEERS,
SURVEYORS, AND EXPERT WITNESSES .
(ii) ANY DIMINUTION IN THE VALUE OF THE PROPERTY
ATTRIBUTABLE TO THE BREACH OR FAILURE OF ANY
WARRANTY OR REPRESENTATION MADE BY LICENSEE IN
THIS AGREEMENT, OR CLEANL7P, DETOXIFICATION,
REMEDIATION, OR OTHER TYPE OF RESPONSE ACTION
TAKEN WITH RESPECT TO ANY HAZARDOUS SUBSTANCE ON
OR UNDER THE PROPERTY REGARDLESS OF WHETHER OR
NOT THAT ACTION WAS MANDATED BY THE FEDERAL,
STATE, OR LOCAL GOVERNMENT.
8 . ASSIGNMENT
(a) LICENSEE shall not assign or transfer this Agreement
in whole or in part, or sublet all or any part of the
Property to any unaffiliated entity without the CITY' s
prior written consent . Costs to the City due to any
assignment or transfer will be reimbursed to the City
within 30 days of the approval of a transfer. For
purpose of this section, "Affiliate" should be defined
as follows : A person, association, partnership,
corporation or joint-stock company, trust or other
business entity, however organized, ( "Person" ) is an
affiliate of that entity that directly or indirectly,
through one or more intermediaries, controls, is
controlled by or is under common control with such
Person. Control shall be defined as (i) ownership of
a majority of the voting power of all classes of
voting stock or (ii) ownership of a majority of the
beneficial interests in income and capital of an
entity other than a corporation. Consent by CITY to
any assignment or subletting shall not constitute a
waiver of the necessity of such consent to any
subsequent assignment or subletting. This prohibition
against any assignment or subletting shall be
construed to include a prohibition against any
subletting or assignment by operation of law.
(b) If this Agreement is assigned, or if the Property or
any part thereof is sublet or occupied by anyone other
than LICENSEE, CITY may collect from the assignee,
transferee, sublessee or other named entity, subuser
or occupant ( "Assignee" ) and apply the net amount
collected to the obligations of LICENSEE hereunder
reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver or
release of LICENSEE from the further performance by
LICENSEE of the covenants on the part of LICENSEE,
hereunder contained. Notwithstanding any assignment
TX-TARR-DFAP-012.01 (12)
or subuse, LICENSEE shall remain fully liable on this
Agreement and 'shall not be released from performing
- any of the terms, covenants and conditions of this
Agreement .
(c) The CITY shall not unreasonably withhold its consent
to any assignment or transfer of this Agreement to any
unaffiliated entity, provided, however, among other
things :
l . the proposed Assignee agrees to comply with all
provisions of this Agreement and such additional
conditions as the CITY may prescribe; and
2 . the Assignee is able to provide assurances
reasonably satisfactory to the CITY of its
qualifications, financial capability, character of the
effect of the transaction and such other matters as
the CITY deems relevant .
(d) LICENSEE shall pay and/or reimburse CITY for any costs
incurred by the CITY due to any proposed transfer,
assignment or subletting whether such transaction is
approved, approved with conditions or denied.
(e) Any person or entity to which this Agreement is
assigned pursuant to the provisions of the Bankruptcy
Code, 11 U. S .C. sections 101, et seq. , shall be deemed
without further act to have assumed all of the
obligations of LICENSEE arising under this Agreement
on and after the date of such assignment . Any such
assignee shall upon demand execute and deliver to CITY
an instrument confirming such assumption. Any monies
or other considerations payable or otherwise to be
delivered in connection with such assignment shall be
paid to CITY, shall be the exclusive property of CITY,
and shall not constitute property of LICENSEE or of
the estate of LICENSEE within the meaning of the
Bankruptcy Code . Any monies or other considerations
constituting CITY' s property under the preceding
sentence not paid or delivered to CITY shall be held
in trust for the benefit of CITY and be promptly paid
to CITY.
9 . RECORDING
This document shall be recorded in the Deed Records of
Tarrant County, Texas .
10 . SEVERANCE
TX-TARR-DFAP-012.01 (13)
If any section, subsection, sentence, clause, phrase, term,
provision, condition, covenant or portion of this License
Agreement is for any reason held invalid or unenforceable
by any court of competent jurisdiction, the remainder of
this License Agreement shall not be affected thereby but
shall be deemed as a separate, distinct and independent
provision, and such holding shall not affect the validity
of the remaining portions hereof, and each remaining
section, subsection, sentence, clause, phrase, term,
provision, condition, covenant and portion of this License
Agreement shall be valid and enforceable to the fullest
extent permitted by law.
11 . APPLICABLE LAW
This Agreement shall be entered into subject to the Charter
and ordinances of CITY, as they may be amended from time to
time, and is subject to and is to be construed, governed,
and enforced under all applicable State of Texas and
federal laws . Situs of this Agreement is agreed to be
Tarrant County, Texas, for all purposes including
performance and execution.
12 . NO THIRD PARTY BENEFICIARY
For purposes of this Agreement, including its intended
operation and effect, the parties specifically agree and
contract that : (1) the Agreement only affects
matters/disputes between the parties to this Agreement , and
is in no way intended by the parties to benefit or
otherwise affect any third person or entity,
notwithstanding the fact that such third person or entities
may be in a contractual relationship with CITY or LICENSEE
or both; and (2) the terms of this Agreement are not
intended to release, either by contract or operation of
law, any third person or entity from obligations owing by
them to either CITY or LICENSEE .
13 . INDEPENDENT CONTRACTOR
LICENSEE covenants and agrees that it is an independent
contractor and not an officer, agent, servant or employee
of CITY; that LICENSEE shall have exclusive control of and
exclusive right to control the details of performance
hereunder and all persons performing same, and shall be
responsible for the acts and omissions of its officers,
agents, employees, contractors, subcontractors and
consultants; that the doctrine of respondeat superior shall
not apply as between CITY and LICENSEE, its officers ,
agents, employees, contractors, subcontractors and
TX-TARR-DFAP-012.01 (14)
consultants, and nothing herein shall be construed as
creating a partnership or joint enterprise between CITY and
LICENSEE.
14 . NONWAIVER
It is further agreed that one (1) or more instances of
forbearance by CITY in the exercise of its rights herein
shall in no way constitute a waiver thereof .
15 . NOTICES
All notices required or permitted to be given to either
party by the other party under any provisions of this
License Agreement shall be in writing and shall be deemed
served:
(a) When delivered by hand or by Federal Express or
similar service to that party' s address set forth
below during normal business hours; or
(b) When mailed to any other person designated by that
party in writing herein to receive such notice, via
certified mail, return receipt requested.
Notice shall be given to the following:
(c) If to CITY:
City Manager, City of Grapevine
P.O. Box 95104
Grapevine, TX 76099
(d) If to LICENSEE:
Director - Right of Way Coordination
Texas Midstream Gas Services, L.L. C.
P.O. Box 18162
Oklahoma City, OK 73154
16 . APPROVAL
This License Agreement shall become effective on the date
stated above after City Council approval .
TX-TARR-DFAP-012.01 (15)
IN WITNESS WHEREOF, the parties execute this LICENSE
AGREEMENT on the day and year written above .
LICENSEE :
Texas Midstream Gas Services, L.L. C.
BY:
James C. Johnson,
Its : President
CITY OF GRAPEVINE
BY:
Bruno Rumbelow
City Manager -
APPROVED AS TO FORM:
City Attorney
BY:
TX-TARR-DFAP-012.01 (16)
THE STATE OF OKLAHOMA §
LICENSEE Acknowledgment
COUNTY OF OKLAHOMA §
Before me, the undersigned authority, a notary public in
and for the State of Oklahoma, on this day personally appeared
James C. Johnson, who is known to me or who was proved to me on
the oath of (name of person identifying
the acknowledging person) or who was proved to me through
(description of identity
card or other document issued by the federal or state government
containing the picture and signature of the acknowledging
person) known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me
that he executed same for and as the act of and as the
President , thereof, and for the purposes and consideration
therein expressed.
Given under my hand and seal of office on this the
day of , 2007 .
Notary Public In and For
My Commission Expires : The State of OKLAHOMA
Notary' s Printed Name
TX-TARR-DFAP-012.01 (17)
THE STATE OF TEXAS §
CITY Acknowledgment
COUNTY OF TARRANT §
Before me, the undersigned authority, a Notary Public in
and for the State of Texas, on this day personally appeared
Bruno Rumbelow , known to me to be the person and of f icer whose
name is subscribed to the foregoing instrument , and acknowledged
to me that he executed same for and as the act of the CITY OF
GRAPEVINE, Texas, a Texas municipal corporation, and as City
Manager thereof, and for the purposes and consideration therein
expressed.
Given under my hand and seal of office on this the
day of , 2008 .
Notary Public In and For
The State of Texas
Notary' s Printed Name
TX-TARR-DFAP-012.01 (18)
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